Key Takeaway
DJ denial reversed: Court excuses IME notice misspelling, rules proper service to attorney sufficient for no-fault insurance claim coverage denial.
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for appellant.
Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa
Betancourt of counsel), for Empire Acupuncture, PC,
respondent.
Amos Weinberg, Great Neck, for Multiple Medical Health
Services P.C. and Infinite Chiropractic, PLLC, respondents.
American Tr. Ins. Co. v Marte-Rosario, 2013 NY Slip Op 07416 (1st Dept. 2013)
“Plaintiff established its entitlement to summary judgment by submitting an affidavit of service demonstrating that the notices scheduling independent medical examinations (IMEs), in connection with a no-fault insurance claim filed by Maria Marte-Rosario, were properly mailed to her and her counsel, and the doctor’s affidavit establishing Marte-Rosario’s failure to appear at the scheduled IMEs (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449 ). The affidavit of service raised a presumption that a proper mailing occurred, which defendants failed to rebut by submitting a returned letter to Marte-Rosario from her counsel, with the name of her street apparently misspelled; in any event, there is no evidence rebutting the showing that the notices were served on Marte-Rosario’s counsel (see Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415 ). As it is undisputed that Marte-Rosario’s appearance at scheduled IMEs was a condition precedent to coverage, plaintiff was entitled to deny the claim (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 ,lv denied 17 NY3d 705 ).”
The address in this case for Assignor was “632 Faile Street, #1, Bronx, New York 10474.” It was noted in certain proofs that correspondences were sent to: “ /* Style Definitions */ table.MsoNormalTable {mso-style-name:“Table Normal”; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:“Times New Roman”,“serif”;} 632 Failes Street, #1, Bronx, New York 10474.” Thus, a letter was presented showing that correspondence was returned if mailed to that address. The Court held that this did not matter, and would require an affidavit of non-receipt of Marte-Rosario on this score to defeat the motion.
Moreover, the court said that even if the letter was not received by Marte-Rosario, it was received by her personal injury attorney, Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:“Table Normal”; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:“Times New Roman”,“serif”;} The Law Offices of Barry Richard Feldman, LLC. Also, be aware that there was no proof in the record, i.e., a letter of representation, that Claimant was actually represented by Mr. Feldman. Under Appellate Term, and now Appellate Division jurisprudence, the burden is on the objectant – i.e. the medical provider or EIP – to demonstrate that the purported attorney was not counsel for Claimant when the letters were sent.
A very powerful case.
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Legal Update (February 2026): Since this 2013 decision, New York’s no-fault insurance regulations and procedural requirements for IME scheduling and notice provisions may have been amended through regulatory updates or statutory changes. Practitioners should verify current notice requirements, service standards, and procedural safeguards under the most recent Insurance Law provisions and Department of Financial Services regulations.
